Former Prosecutor's Spokeswoman Goes on Trial for Contempt

A French journalist went on trial this week charged with disclosing confidential material from the Hague tribunal, with her defence seeking to challenge the confidential nature of the information she had published and invoking her right to freedom of expression.



Florence Hartmann is facing trial at the very court that employed her from 1999 until 2006 - as spokeswoman for the former chief prosecutor, Carla Del Ponte - on two counts of contempt of court for disclosing the contents of confidential decisions made by appeals judges during the trial of the late Serbian president Slobodan Milosevic.



According to an amended order in lieu of an indictment issued on October 28, 2008, Hartmann revealed information in her book - Paix et châtiment (Peace and Punishment) - published on September 10, 2007, about two separate appeals chamber decisions of September 20, 2005 and April 6, 2006 “including the contents and purported effects of these decisions, as well as specific reference to the confidential nature of these decisions”.



Milosevic faced trial at the International Criminal Tribunal for the former Yugoslavia, ICTY, for war crimes in Bosnia, Croatia and Kosovo, but he died in his cell in March 2006 before proceedings could be completed.



Hartmann, who was first charged on August 27, 2008, is also accused of revealing details of the same two decisions in an article, Vital Genocide Documents Concealed, published on the website of the Bosnian Institute on January 21, 2008.



As suggested by the evidence presented in court, the decisions relate to the granting of confidentiality to minutes of meetings of Serbia’s Supreme Defence Council, SDC, which are widely believed to contain crucial information about Belgrade’s involvement in the Yugoslav wars, and particularly the 1995 massacre of approximately 8,000 Bosniak men and boys at Srebrenica.



The prosecution took the position this week - in what it called “a relatively straightforward case” - that Hartmann was mindful of her actions and purposefully undertook to publish confidential details of the judges’ decisions.



“The case will demonstrate that the steps taken by the accused and the words she used and the comments she used in her publications were not mere inadvertence, were not an accident, they were deliberate,” Canadian prosecutor Bruce McFarlane told the court in his opening statement on June 15.



Hartmann’s own words “were a statement of defiance”, he added.



However, one of Hartmann’s lawyers, Karim Khan, argued that his client was not guilty of any intentional transgression as other journalists had quoted “exactly the same facts” included in his client’s book.



He presented judges with articles published by IWPR which have discussed Serbia’s and the court’s handling of the SDC documents.



He said that by the end of the case “the prosecutor would have singularly failed in his responsibility to prove a guilty mind which it is his burden to do”.



It emerged in court this week that Hartmann received a warning from the court’s registrar, following the publication of her 2007 book, about the disclosure of classified information.



According to McFarlane, the court registry sent the cautionary letter to Hartmann on October 19, 2007. That date followed the publication of her book but preceded the publication of the article on January 21, 2008 which has also triggered the charges.



The defence disputed the prosecution’s submission of the letter into evidence on the grounds that it had not been forewarned by the prosecution. However, further discussion of the document and whether to admit it in evidence was conducted in private session.



The prosecution called two witnesses in the presentation of it case. The first was Yorric Kermarrec of the French publishing house Flammarion, which published Hartmann’s book in 2007. Kermarrec testified about the publishing agreement Flammarion had signed with Hartmann and said that the publisher had trusted the author when it came to the lawfulness of the content of the book.



McFarlane also called Robin Vincent, the registrar of the Special Tribunal for Lebanon, recently established in The Hague, to testify about the importance of respecting judges’ confidentiality orders, particularly in relation to states supplying evidence to international courts.



Vincent told judges that breaches of such confidentiality orders could threaten states’ levels of cooperation with the tribunal.



“If there is any lack of confidence in the tribunal so far as a state is concerned that is in a position to provide evidence… once it’s recognised there is a danger of breaches it’s unlikely that the cooperation that tribunal seeks will actually be forthcoming,” Vincent said.



In its cross examination of Vincent, the Hartmann defence sought to play down the binding nature of orders granting confidentiality to the decisions, while also advancing its argument that the “tribunal made these facts public” in previous decisions issued by its own judges.



Khan took Vincent through a number of decisions of ICTY judges that cited the existence of the confidential decisions in the Milosevic trial, allegedly discussed by Hartmann, as a supporting legal argument.



Vincent agreed with Khan that “there is nothing unusual” about judges citing confidential decisions in public filings.



However, the presiding judge, Bakone Maloto, sought to establish from Vincent what he thought confidentiality orders issued by judges were actually protecting - either the existence of a particular decision or the contents of that decision.



“The contents of the decision,” Vincent said.



Khan further warned judges that convicting Hartmann of contempt would be tantamount to limiting freedom of expression that was a necessary contribution to international justice.



“In your powers to fulfil the overall mandate [of the tribunal] it is critical not to over extend the parameters of criminal responsibility so that they would stymie the freedom of speech that is needed,” Khan told judges.



The defence called a former member of the United Nations Sub-Commission on Human Rights, Louis Joinet, whose work and recommendations in the field of human rights helped lead to the establishment of the tribunal in 1993.



Joinet told judges that enforcing the confidentiality of decisions such as those published by Hartmann and limiting the right to freedom of expression should be an exception rather than the rule in judicial procedure. He said there was a principle of proportionality involved in determining the need to limit the right of freedom of expression against the court’s function of establishing the truth.



“[Limitations] are acceptable up to the moment they would end up impeding justice to look for the truth which is [the tribunal’s] final objective,” Joinet told the court.



The defence also called the director of the Humanitarian Law Center in Belgrade, Natasha Kandic, to give evidence. She testified that Hartmann’s book did not reveal any information that was not already being discussed by the media and the human rights community in relation to Serbia’s involvement in the war and particularly in the Srebrenica massacre.



Kandic said that it was the SDC documents that Serbia wanted to remain confidential rather than the actual decision granting their confidentiality, explaining that Serbia had sought confidentiality in order to defend itself from the accusation by Bosnia at the International Court of Justice, ICJ, that it had participated in the Srebrenica genocide. In February 2007, the ICJ did not find Serbia accountable for the genocide in Srebrenica.



The prosecution’s cross-examination of Kandic, which was largely in closed session, was not completed in the three scheduled hearings this week. Due to a congested schedule of cases at the court, the trial was adjourned until July 1 when the proceedings against Hartmann are expected to be completed.



Simon Jennings is an IWPR reporter in The Hague.